Free Motion for Extension of Time to File Response/Reply - District Court of California - California

Case 4:08-cv-00022-SBA

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KEITH E. EGGLETON, State Bar No.159842 RODNEY G. STRICKLAND, State Bar No. 161934 JONI L. OSTLER, State Bar No. 230009 FREEDA LUGO, State Bar No. 244913 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Defendants BIGBAND NETWORKS, INC., AMIR BASSANESKENAZI, FREDERICK A. BALL, RAN OZ, LLOYD CARNEY, DEAN GILBERT, KENNETH A. GOLDMAN, GAL ISRAELY, BRUCE I. SACHS, ROBERT J. SACHS and GEOFFREY Y. YANG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JAMES WILTJER, On Behalf of Himself and All ) ) Others Similarly Situated, ) ) Plaintiff, ) ) v. ) BIGBAND NETWORKS, INC., AMIR BASSAN- ) ESKENAZI, FREDERICK A. BALL, RAN OZ, ) LLOYD CARNEY, DEAN GILBERT, KENNETH) A. GOLDMAN, GAL ISRAELY, BRUCE I. ) SACHS, ROBERT J. SACHS, GEOFFREY Y. ) YANG, MORGAN STANLEY & CO. ) INCORPORATED, MERRILL LYNCH, PIERCE, ) FENNER & SMITH INCORPORATED, ) JEFFERIES & COMPANY, INC., COWEN AND ) COMPANY, LLC, THINKEQUITY PARTNERS ) LLC and DOES 1-25, inclusive, ) ) Defendants. ) Case No. 08-22-CRB MOTION FOR ADMINISTRATIVE RELIEF TO EXTEND TIME FOR DEFENDANTS TO RESPOND TO PLAINTIFF'S MOTION TO REMAND

ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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Pursuant to Civil L.R. 7-11 and Civil L.R. 6-3, and for the reasons set forth below, Defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Frederick Ball, Ran Oz, Lloyd Carney, Dean Gilbert, Kenneth Goldman, Gal Israely, Bruce Sachs, Robert Sachs, and Geoffrey Yang (collectively, "BigBand Defendants"), respectfully request that the Court grant them a brief, one-week extension of time to file their opposition to Plaintiff's Motion to Remand, from February 1, 2008 to February 8, 2008. This extension is requested due to the press of business. A brief extension is also appropriate in light of the BigBand Defendants' unopposed Administrative Motion to relate this case to seven other putative securities class actions challenging statements made in connection with BigBand's initial public offering ("IPO") in March 2007. That Administrative Motion is pending before the Hon. Saundra Brown Armstrong, who is scheduled to hold a conference in the first-filed case on February 5, 2008. The BigBand Defendants submit the Declaration of Freeda Lugo ("Lugo Decl."), in support of this motion. PROCEDURAL BACKGROUND The Various Cases Challenging BigBand's IPO This case is one of eight putative class action lawsuits filed against BigBand Networks, Inc., certain of its current and former officers and directors, and the underwriters of its IPO. The eight cases allege that the Defendants issued false and misleading statements, in violation of the federal securities laws, in the registration statement and prospectus for BigBand's March 2007 IPO and thereafter. The first-filed of the eight cases, Mohanty v. Bassan-Eskenazi, No. C 07-5101-SBA (the "Mohanty Action"), was filed on October 3, 2007, and was assigned to Judge Armstrong.1 See
1

The other cases are: Koesterer v. BigBand Networks, Inc., No. C 07-5168-MMC (filed Oct. 9, 2007); Winston v. BigBand Networks, Inc., No. C 07-5327-MMC (filed Oct. 18, 2007); Smith v. BigBand Networks, Inc., No. C 07-5361-SI (filed Oct. 19, 2007); Luzon v. BigBand Networks, No. C 07-5637-WHA (filed Nov. 6, 2007); Bernstein v. BigBand Networks, Inc., No. C 0705819-CRB (filed Nov. 15, 2007); and Hammer v. BigBand Networks, Inc., No. C 07-5825-SI (filed Nov. 16, 2007). On November 21, 2007, the parties to each of these actions filed a stipulation and [Proposed] Order requesting consolidation of the multiple actions and agreeing that Defendants are not obligated to respond to any of the pending complaints until Judge Armstrong appoints a lead plaintiff and a consolidated complaint is filed by the appointed lead plaintiff. See Stipulation and [Proposed] Order Regarding Consolidation and Scheduling, filed November 21, 2007, in the Mohanty Action. -1ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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Lugo Decl. Ex. 1 (docket sheet for Mohanty Action). On December 3, 2007, two motions for consolidation and appointment as lead plaintiff were filed in the Mohanty Action. See Lugo Decl. Ex. 1 (Docket Nos. 12, 15). Those motions are scheduled to be heard by Judge Armstrong on February 5, 2008. A case management conference in the Mohanty Action is scheduled for the same day. See id. (Docket Nos. 21, 27). II. The Instant Action and the BigBand Defendants' Administrative Motion to Relate Cases Counsel for Plaintiff initially filed a federal action on behalf of Ellen Brodsky, also challenging statements made in connection with BigBand's IPO. Brodsky v. BigBand Networks,

9 Inc., No. C 07-5141-MHP (filed Oct. 5, 2007). Brodsky's certificate of BigBand holdings, filed as 10 required by the Private Securities Litigation Reform Act (the "Reform Act"), shows that she held 11 400 BigBand shares. See Brodsky v. BigBand Networks, Inc., No C 07-5141-MHP, Doc. No. 1. 12 Other plaintiffs, however, held larger stakes in BigBand. See, e.g., Mohanty v. BigBand Networks, 13 Inc., No. C 07-5010-SBA, Doc. No. 1 (7715 shares purchased). Brodsky voluntarily dismissed 14 her complaint on October 25, 2007. 15 On December 3, 2007, Brodsky's counsel filed the instant action on behalf of Plaintiff 16 James Wiltjer, this time in the Superior Court for the State of California, County of San Francisco. 17 The action again challenges statements made in connection with BigBand's IPO, asserting claims 18 under the federal securities laws. Plaintiff names the same defendants as in the Mohanty Action. 19 Having filed in state court, Plaintiff did not certify his BigBand holdings under the Reform Act. 20 On January 2, 2008, all Defendants removed the action to this Court. On January 3, 2008, 21 the BigBand Defendants filed a Motion for Administrative Relief to Consider Whether Cases 22 Should Be Related, to relate this case to the Mohanty Action. See Lugo Decl. Ex. 2 23 (Administrative Motion). Pursuant to this Court's Local Civil Rules, the motion was filed in the 24 Mohanty Action and served on Plaintiff's counsel and the underwriter defendants' counsel. On 25 January 4, 2008, the underwriter defendants joined in the motion. Plaintiff did not oppose the 26 motion, and the time for opposing has run. See Lugo Decl. Ex. 1. 27 28 -2ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

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The Administrative Motion to relate this action to the Mohanty Action will likely be ruled on either at or before the February 5, 2008 hearing and case management conference before Judge Armstrong. III. Plaintiff's Motion to Remand On January 18, 2008, Plaintiff filed a Motion to Remand this case to state court, and noticed the motion for hearing before this Court on February 22, 2008. Plaintiff did not consult with the BigBand Defendants prior to filing the motion or setting the hearing date. The BigBand Defendants' opposition is currently due February 1, 2008. DEFENDANTS' REQUEST FOR A BRIEF EXTENSION OF TIME TO OPPOSE PLAINTIFF'S MOTION TO REMAND SHOULD BE GRANTED The BigBand Defendants respectfully request a brief, one-week extension of time to complete their opposition papers to Plaintiff's remand motion. The request is made due to the press of business. No prior extension of time has been sought. A brief extension of time is particularly appropriate here, given the pending, unopposed motion to relate this case to the Mohanty Action. That motion will likely be ruled on by February 5, 2008. Should the motion be granted, the current hearing date for Plaintiff's Motion to Remand (February 22, 2008) would be vacated. The BigBand Defendants sought Plaintiff's consent to this extension request. Plaintiff refused. Lugo Decl. Ex. 3. Plaintiff, however, cannot claim any real prejudice from the brief extension request of one week. At most, the hearing on Plaintiff's remand motion would be delayed by one week. (The hearing, however, may be delayed in any event in light of the BigBand Defendants' unopposed Administrative Motion for related case treatment.) Accordingly, Defendants request that the Court extend the due date for Defendants' opposition to Plaintiff's Motion to Remand to February 8, 2008. In light of this request, the Court may wish to move the February 22, 2008 hearing on Plaintiff's Motion to Remand to

-3ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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February 29, 2008 or a later date (or remove it from the Court's calendar if this case is deemed related to the Mohanty Action). Dated: January 28, 2008 WILSON SONSINI GOODRICH & ROSATI Professional Corporation

/s/ Keith E. Eggleton Keith E. Eggleton 650 Page Mill Road Palo Alto, CA 94304 Tel.: (650) 493-9300 Fax: (650) 493-6811 Counsel for Defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Ran Oz, Frederick Ball, Gal Israely, Dean Gilbert, Ken Goldman, Lloyd Carney, Bruce Sachs, Robert Sachs and Geoffrey Yang

By:

-4ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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I, Freeda Lugo, as counsel for defendants BigBand Networks, Inc., Amir Bassan-Eskenazi, Frederick A. Ball, Ran Oz, Lloyd Carney, Dean Gilbert, Kenneth A. Goldman, Gal Israely, Bruce I. Sachs, Robert J. Sachs, and Geoffrey Y. Yang, am the ECF User whose identification and password are being used to file the Motion for Administrative Relief to Extend Time for Defendants to respond to Plaintiff's Motion to Remand. In compliance with General Order 45.X.B., I hereby attest that Keith E. Eggleton has concurred in this filing.

Dated: January 28, 2008

WILSON SONSINI GOODRICH & ROSATI Professional Corporation

By:

/s/ Freeda Lugo Freeda Lugo

-5ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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KEITH E. EGGLETON, State Bar No.159842 RODNEY G. STRICKLAND, State Bar No. 161934 JONI L. OSTLER, State Bar No. 230009 FREEDA LUGO, State Bar No. 244913 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] Attorneys for Defendants BIGBAND NETWORKS, INC., AMIR BASSANESKENAZI, FREDERICK A. BALL, RAN OZ, LLOYD CARNEY, DEAN GILBERT, KENNETH A. GOLDMAN, GAL ISRAELY, BRUCE I. SACHS, ROBERT J. SACHS and GEOFFREY Y. YANG UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) JAMES WILTJER, On Behalf of Himself and All ) ) Others Similarly Situated, ) ) Plaintiff, ) ) v. ) BIGBAND NETWORKS, INC., AMIR BASSAN- ) ESKENAZI, FREDERICK A. BALL, RAN OZ, ) LLOYD CARNEY, DEAN GILBERT, KENNETH) A. GOLDMAN, GAL ISRAELY, BRUCE I. ) SACHS, ROBERT J. SACHS, GEOFFREY Y. ) YANG, MORGAN STANLEY & CO. ) INCORPORATED, MERRILL LYNCH, PIERCE, ) FENNER & SMITH INCORPORATED, ) JEFFERIES & COMPANY, INC., COWEN AND ) COMPANY, LLC, THINKEQUITY PARTNERS ) LLC and DOES 1-25, inclusive, ) ) Defendants. )

Case No. 08-22-CRB [PROPOSED] ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF TO EXTEND TIME FOR DEFENDANTS TO RESPOND TO PLAINTIFF'S MOTION TO REMAND

[PROPOSED] ORDER GRANTING ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB

Case 4:08-cv-00022-SBA

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Upon the Motion for Administrative Relief to Extend Time for Defendants to Respond to Plaintiff's Motion to Remand Pursuant to Civil L.R. 7-11 and Civil L.R. 6-3, and good cause appearing, the Court hereby ORDERS as follows: Defendants shall have until February 8, 2008 to respond to Plaintiff's Motion to Remand. Plaintiff's Motion to Remand shall be heard on ____________, 2008. IT IS SO ORDERED.

Dated: ____________________

______________________________________ THE HONORABLE CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

[PROPOSED] ORDER GRANTING ADMIN. MOT. TO EXTEND TIME TO RESPOND

CASE NO. 08-22-CRB